Hanging in the balance

Ironically, both the Right and Left are pressurising the Govt to deny Afzal's mercy plea, writes Prem Shankar Jha.

The death of Col JS Sarna, killed in an encounter in Kashmir last weekend, was in no way different from that of 5,000 jawans and officers who have given their lives in Kashmir. Sarna’s death attracted media attention because he was cremated in Delhi and because he had chosen to lead the operation to flush out two militants from a village, instead of delegating it to his juniors. Sarna is, thus, a true hero. But to fully understand his bravery, and that of the 5,000 soldiers who have died in Kashmir, one needs to know the options that he and the Indian Army had, but chose not to exercise.

Had this been another army — the Israeli, the American, Nato’s or even the Pakistani — helicopter gunships and perhaps a predator drone would have been sent in to bomb and strafe the houses into rubble. No warning would have been given and the army would have had no idea whom, or how many, it had killed. Had the Indian Army been using such tactics it would have lost perhaps a quarter as many people as it has over the past 17 years, and Sarna would have been very much alive today.

But to the Indian Army’s eternal credit, not once in any of its encounters, has it used such indiscriminate methods. In every case it has cordoned the village or area, warned all civilians to leave and only then sent soldiers in to do a house to house search. The militants have always had the option of surrendering, and when they have not, have had the advantage of opening fire first. As a result, the security forces have sustained casualties in nearly every operation. To do this year after year has required a cold courage that few armies in the world have demonstrated. Each death has been a sacrifice, made knowingly by the armed forces, because it was the only way of making sure that civilians did not become ‘collateral damage’. If all Kashmiris have not therefore become irreversibly alienated from India, and we can still hope to gain their accession in spirit to this country, it is because of this careful and costly restraint.

But all of these sacrifices will be in vain if Mohammad Afzal Guru’s sentence of death by hanging is carried out. In the past two months, as the President has struggled over whether or not to heed Afzal’s mercy petition and commute his death sentence to life, he has become the centre of a controversy that is remorselessly eroding his chances of survival.

Paradoxically, the pressure to deny Afzal’s mercy petition is coming from both the Right and the Left. No day passes without some BJP politician demanding that the President take his decision straightaway, and not allow it to hang for years, as has happened in other cases. On the surface this is a plea for expedition, but is really an attempt to hustle the President into denying Afzal’s plea.

What is equally counterproductive is the self-righteous posture that has been adopted by the liberal-Left intelligentsia. Personalities, such as novelist Arundhati Roy, have joined with lawyers and human rights activists in Kashmir’s civil society to demand a retrial on the grounds that the judicial process by which Afzal was convicted did not measure up to international standards. What they have either not realised or chosen to ignore is that impugning the judicial system, including the Supreme Court, amounts to an attack on the Indian State and leaves it with little option but to defend itself. It can only do so by hardening its stand.

The Left could have been forgiven had this been the first time that an excess of self-righteousness had had the opposite of the desired effect. But just over a year ago, exactly the same kind of media campaign impugning the impartiality of the Pakistani judiciary had made the Pakistani government harden its stand over granting clemency to Sarabjit Singh, the Indian R&AW agent whom the Pakistani courts had convicted in a bomb blast case in that country, and reduced his chances of survival.

The dust stirred up by the controversy has obscured the fact that the Afzal case raises not one but two issues that desperately need to be kept apart. The first is the question of his guilt or innocence. The second is the punishment he should receive. The curative petition for a hearing from an enlarged bench of the Supreme Court addresses the former.

But almost no one has paid serious attention to arguments that favour clemency. The most important is that ever since the Supreme Court ruled that the death penalty should be awarded only in the rarest of rare cases, India has ceased to have a mandatory death penalty. The award of capital punishment has become a discretionary act and all exercises of discretion have to be justified.

The Supreme Court has justified upholding the death penalty on the grounds that only this will satisfy the “collective conscience” of the people. The utter muddle that lies behind this pronouncement may be judged from the fact that ‘conscience’ has to be felt by the perpetrator of a crime and not by its victims. But now that the Supreme Court has pronounced itself, the ball is in the President’s court. And he cannot afford the luxury of indulging in sentimentality or muddled thinking, for far, far too much hangs upon his decision.

In Kashmir, Afzal’s hanging will have the same effect as the hanging of Maqbool Butt had in February 1984. Till then, the Kashmiri separatist movement had been, by and large, peaceful and marginal. Not only did Butt’s hanging draw hundreds of young men like Yassin Malik and Mushtaq Latram into the separatist movement, but for the first time, they began to cross the border to get trained in the use of arms. The fruits of that monumental blunder are still poisoning us.

The repercussions of hanging Afzal will almost certainly be a hundred times more serious. The militant leaders of the 1989 insurgency are now in their late 30s and early 40s. They are tired men who have learned the hard way that the gun holds no answers. But for precisely this reason, they are no longer icons to the new generation of disaffected, educated youth in the Valley.

These young people have known no peace, have never seen India’s benign face and have been hardened into unrelenting hatred by 18 years of conflict and militant and Pakistani propaganda. They have been influenced by two decades of creeping wahhaby-ism, and are boiling with rage at the targeting of Muslims — the byproduct of the West’s war on terror. They regard India as the West’s ally in this war. Today, they are rebels without a leader, in search of a cause. Afzal’s hanging will send a substantial number of them into the arms of the Lashkar-e-Tayyeba, and the Jaish-e-Mohammad.

That will make sacrifices like Sarna’s pointless, but the damage will not stop there. A second Kashmiri insurrection under the Lashkar and Jaish will put an end to the Indo-Pak dialogue on Kashmir, and the prospects of peace between the two countries. The resurgence of violence and terrorism in mainland India could make foreign investors shy away. Portfolio investment is likely to go first. That would bring the stock market crashing, force up interest rates and crush the industrial boom.

Do we really need any of this? Can we even contemplate taking such a huge risk with India’s future? We might have had no option if the death penalty had been mandatory for Afzal’s crimes. But India no longer has a mandatory death sentence, only a discretionary one. Yes, the attack on Parliament was shocking. Yes, some brave men lost their lives defending it. But will we benefit, or harm, the nation by insisting on extracting an eye for an eye and a tooth for a tooth. The answer is obvious. Justice is a great virtue, but compassion is an even greater one.